March 16th, 2009 06:48 PM
NY Times: "Few Ripples From Supreme Court Ruling on Guns"
Interesting article in today's NY Times, arguing that the ruling last year (D.C. vs Heller) is having little effect in the lower courts.
Few Ripples From Supreme Court Ruling on Guns
By ADAM LIPTAK
About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.
So far, Heller is firing blanks.
The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal immigrants and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons.
“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles, who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”
Heller itself struck down parts of the District of Columbia’s gun control law, the strictest in the nation. The case was brought by law-abiding people who wanted to keep guns in their homes for self-defense. The cases that have followed it tend to concern more focused laws and less attractive gun owners.
Harvey C. Jackson IV, for instance, argued that he had a constitutional right to carry a gun while selling drugs in a dangerous neighborhood in East St. Louis, Ill. The federal appeals court in Chicago was unimpressed.
“The Constitution does not give anyone the right to be armed while committing a felony,” Chief Judge Frank H. Easterbrook wrote last month in Mr. Jackson’s case.
Professor Winkler summarized the impact of Heller in an article to be published in The U.C.L.A. Law Review in June. “So far,” he wrote, “the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose.”
There is one arguable exception to this trend. Two judges have struck down a part of the Adam Walsh Child Protection and Safety Act, named after the murdered son of John Walsh, the host of the television show “America’s Most Wanted.” The act says that people accused of child pornography offenses must be prohibited from possessing guns while they await trial.
That provision may well have been unconstitutional as a matter of due process even before Heller, as it seems to impose a punishment before conviction. But two courts have struck down the provision based partly on the fact that a fundamental constitutional right is at stake.
“A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm,” Magistrate Judge James C. Francis IV of the Federal District Court in Manhattan wrote in December. Heller changed that, he said.
“The right to possess a firearm is constitutionally protected,” Judge Francis wrote. “There is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm.”
The cases discussed so far all concerned federal laws, and there is no question that the Second Amendment applies to the federal government. The great open question after Heller is whether the Second Amendment also applies to the states or, in the legal jargon, whether the amendment is incorporated against them.
The Supreme Court has said that most but not all of the protections of the Bill of Rights are incorporated by the Fourteenth Amendment, one of the post-Civil War amendments.
The consensus among most legal scholars is that incorporation of the Second Amendment is likely. True, the Supreme Court has said in some past cases that the Second Amendment applies only to the federal government. But a footnote in Heller cast doubt on those decisions. For now, lower courts probably have to follow the older decisions until the Supreme Court says otherwise.
There are cases in the pipeline, notably in the federal appeals courts in Chicago and San Francisco, that could give the court an opportunity to answer the question in its next term.
Even if the court applies the amendment to the states, though, little may change. Most state constitutions already protect an individual right to bear arms, and federal protection, depending on its form, could well be merely duplicative.
But some liberal lawyers and law professors sense an opportunity, and they have urged courts to incorporate the Second Amendment in a novel way, one that might help liberal arguments for protecting rights not specifically mentioned in the Constitution. Abortion and gay rights come to mind.
In a supporting brief filed in the Chicago case, lawyers for the Constitutional Accountability Center, a liberal group, urged the court to bypass the usual way that amendments are applied to the states, through the Fourteenth Amendment’s due process clause. Using that clause to guarantee fundamental rights has always seemed a little curious, as “due process” would seem to protect only fair procedures and not substance.
Another possibility, and the one urged by the center’s brief, is the Fourteenth Amendment’s “privileges and immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.” The virtues of that clause are it makes sense by its terms and there is some evidence that its framers specifically wanted it to apply to allow freed slaves to have guns to defend themselves.
All of this is awfully technical, of course, and it may have no practical consequences at all.
“My own bet,” said Sanford Levinson, a law professor at the University of Texas, “is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”
"Democracy is two wolves and a lamb voting on what to have for lunch; Liberty is a well-armed lamb contesting the vote."
-- Benjamin Franklin
March 16th, 2009 07:12 PM
Time will tell...
The ruling, after all, is only 9 months old, and court cases often take longer than that to meander the halls of justice from start to finish.
March 16th, 2009 07:42 PM
Not much of a change is better than it could have been with the opposite rulling my SCOTUS...more to come, hang on...
The last Blood Moon Tetrad for this millennium starts in April 2014 and ends in September 2015...according to NASA.
Certified Glock Armorer
NRA Life Member[/B]
March 16th, 2009 07:55 PM
And not even them. Heller affected only the citizens of Washington DC.
Originally Posted by JonInNY
retsup99 has it exactly right. Only a decision against Heller would have had the potential to be damaging to the issues pertaining to our currently expanding gun rights.
March 17th, 2009 08:40 AM
The larger effect of Heller may be that there are no visible effects, in that more restrictive gun legislation just won't be attempted. As was mentioned in the article, the trend in state governments has already been to decrease restrictions, with the vast majority of states having "shall issue" CCW laws, more and more having castle doctrines, and some attempting to remove bans on college campuses and workplace parking lots. There's a good trend working.
Just speculating, but I hope Heller is already affecting what we don't see.
"We're paratroopers. We're supposed to be surrounded!" Dick Winters
March 17th, 2009 09:03 AM
The Heller case had a very limited scope. It was only about the right to own a gun in your home. It said nothing about carrying, registration or a host of other issues. I think the Heller case was more about "not loosing". Imagine if Heller lost!
I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend. (Thomas Jefferson)
March 17th, 2009 10:34 AM
I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.
I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.
Veni, Vidi, Velcro
March 17th, 2009 12:05 PM
I'm going to go in a circle but I hope to end up making a point that has some meaning.
The Old testament of the Bible contains hundreds of laws and regulations governing just about every area of living. If your neighbors fence fell down and one of his cows crossed onto your properity you were required to bring the cow back to your neighbor and not claim it as your own. PThis is pretty much common sense but the situation regarding common sense and morality had diminished to the point where the right actions had to be spelled out step by step.
The spirit of the Old testament law in this type of situation was love your neighbor as yourself. Jesus said all the law and the prophets were summed up in the simple command to love God and love your neighbor.
With respect to the 2nd amendment things have worked in reverse. The spirit of the amendment is that men have the inalienable right to self-defense including a defense against a tyrannical government. The spirit of this amendment has been watered down, restricted, abridged and in some cases down right denied via thousands of laws and regulations regarding firearms ownership.
The Supreme Court decision was an attempt to get back to the spirit of the 2nd amendment but state and local legislators have/will attempt to smother the life the SC decision attempted to breath into this amendment. They are going to bury it under a mountain of new legal decisions and legislation.
Private citizens are now burdened with the cost trying to revive the 2nd amendment and prevent its demise while politians and legislators have the seemingly bottomless pit of tax revenues to keep piling on.
March 17th, 2009 07:04 PM
That's easy for the NYT to say when all the post-Heller cases are either felon cases or state-cases. I wish these stupid felons would quit bringing these cases, it does everyone a disservice.
The effect eventually would be incorporation followed by action against the arbitrary CCW schemes of the may-issues.
"The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
Nunn v. State GA 1848
March 17th, 2009 07:21 PM
No, it highly unlikely that states rights will be further restricted by the current Court. The Court has already opined, emphatically and more than once, that the Second Amendment does not apply to the states. Incorporation is simply a made up word that has no legal precedent. It is used to further the goals of big government proponents and liberals. That is why liberals want incorporation. They hope to leverage the anti-Constitutional concept to force states to their knees on issues such as gay marriage and abortion.
Originally Posted by press1280
Erode states rights and the authority of the state and you erode the United States of America.
I wish all the people would stop using the courts as a legislative branch, whether they be felons or others trying to push a political agenda. In fact, I have more respect for the felons trying to mitigate their punishment than law abiding citizens who are too weak to effect change through the appropriate channels.
The Federal government has NO BUSINESS legislating gun control and the Court has NO BUSINESS crushing the will of the people in the states.
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